Motion Docket
Tuesday, Sept. 11

1. Jerry & Karen Neal v. J. D. Marion - 070676 - Plaintiffs Mr. and Mrs. Neal appeal the circuit court's order granting summary judgment in favor of one defendant, J. D. Marion. The court found that claims against J. D. Marion are time-barred by the 10 year statute of limitations for builders in W.Va. Code § 55-2-6a.

2. R. Brooks Legg, Jr., D.D.S. v. Richard C. Rashid, M.D. - 070005 - Plaintiff in a medical malpractice action appeals the circuit court's summary judgment order which found that the complaint was filed beyond the statute of limitations period.

3. SER Stoney Ault v. Teresa Ward, Warden - 070563 - Petitioner appeals from the circuit court's order denying his habeas corpus petition.

4. Larry Brown, et al. v. Rawl Sales & Processing Co. & Massey Energy Co. - 070889 - Defendants appeal from the circuit court's order granting plaintiffs' motion for injunctive relief for temporary water supply.

5. Thaddeous, Joyce & Chastity Boggess v. Wanda Boggess, Admx.; Wanda Boggess, Individually; & Timothy Bailey, Individually & representative of the Estate of Chad Boggess - 070919 - This is an appeal from the Kanawha County Circuit Court's holding that petitioner's counsel had a conflict of interest pursuant to Rule 1.9 of the Rules of Professional Conduct and Dismissal in its entirety of claims against the Administratrix of an Estate and her attorney for violation of their fiduciary obligations.

6. State of W. Va. v. Wanda Carney & State of W. Va. v. Betty Jarvis - 071020 - Petitioners were convicted in a joint trial of one count of obstructing a police officer and one count of conspiracy to obstruct a police officer. The trial court denied all pre-trial and post-trial motions. Petitioners filed this joint petition for appeal from the court's final order.

7. Mountaineer Group Investments, Inc., et al. v. PSC of West Virginia & Hancock County Public Service District - 071833 - Petitioners appeal PSC order granting a certificate of Convenience and Necessity to construct a sewage treatment plant in Hancock County, arguing that the PSC failed to give the public adequate notice regarding the project.

8. Steven W. Chip, David Shawn & Karen Susan Tucker-Marsh v. Timothy Dantzic, Exe. of the the Estate of Luetta Dantzic Emmart Miller, et al. - 071039 - Timothy Dantzic appeals the circuit court's order which found that a decedent died partially testate and partially intestate, and the circuit court's order which appointed an appraiser to value certain real property.

9. Jerry L. Myers v. Liberty Mutual Insurance Co. - 071245 - Petitioner, Liberty Mutual Insurance Company, appeals from a judgment of $8,500 in Hayseeds damages, $50,000 in punitive damages, and $49,500 for attorney fees and costs in favor of the respondent, Jerry Myers. Liberty Mutual submits that this Court should grant its appeal and set aside the judgment.

10. In Re: Michael Eugene Mounts - 071209 - Michael Eugene Mounts objects to the Board of Law Examiner's findings and conclusion that Mounts is not eligible for admission to the WV State Bar because he has not proven that he possesses the requisite character and fitness.

Argument Docket
Tuesday, Sept. 11

1. Stacey A. Strum, et al., Co-Administrators, etc. v. Traci Marie Swanson, et al. - 33285 - Defendant insurance carrier appeals from the circuit court's order granting summary judgment in favor of plaintiffs regarding underinsured motorist coverage.

2. American Canadian Expeditions, Ltd. v. The Gauley River Corp., et al. - 33246 - Plaintiff American Canadian Expeditions, Ltd. appeals the circuit court's order granting summary judgment in favor of defendants The Gauley River Corporation and Mountain River Tours, Inc. The court found that holding an option to purchase certain real property did not give plaintiff a legal or equitable right to seek damages for timber removed from the property during the option period. - Rescheduled to Oct. 10.

3. Yvonne D. Reed, et al. v. Walter Jason Orme - 33291- The Petitioners seek an appeal of the circuit court's (June 18, 2006) order that granted summary judgment for the Defendant in a civil action seeking damages from a vehicle accident. - To be presented on briefs only without oral argument.

4. Debbie Plumley v. WV Department of Health & Human Resources/OHFL&C - 33287 - The petitioner, the WV DHHR Office of Health Facility Licensure and Certification, appeals the circuit court's order which reversed the Final Order of the DHHR Secretary. The Secretary's Order had found respondent Debbie Plumley ineligible to operate a "legally unlicenced health care home."

5. Donna Joan Blankenship, et al. v. Ethicon, Inc., et al. - 33224 - Plaintiffs appeal from the circuit court's order granting defendant hospital's motion to dismiss holding that all of plaintiffs' claims are barred by the West Virginia Medical Professional Liability Act and that West Virginia common law does not permit product liability claims to be made against healthcare providers as the distributor or seller of products. The circuit court's order was entered following this Court's remand for reconsideration of the circuit court's initial ruling in light of Boggs-Camden Clarke Mem. Hosp. Corp., 216 W.Va. 656, 609 S.E.2d 917 (2004).

6. State of W. Va. v. David Nelson - 33188 - David Nelson appeals his conviction for first degree murder, kidnaping, first degree sexual assault, conspiracy to commit murder, conspiracy to commit kidnaping, and conspiracy to commit first degree sexual assault. He was sentenced to two consecutive terms of life without mercy, plus 18 to 50 years.

7. Charles E. Canterbury v. William R. Laird, IV, Sheriff, et al. - 33132 - Petitioner, Charles Canterbury, appeals the December 30, 2005 Order of the Fayette County Circuit Court granting summary judgment on all counts of the complaint in favor of defendants. The petitioner filed suit seeking compensatory and punitive damages against the County Commission and the Town of Mount Hope arising out of an alleged unconstitutional arrest.

8. SER K Mart Corporation, et al. v. Hon. Jeffrey B. Reed, Judge et al. - 33351 - K-Mart seek a writ of mandamus to compel Judge Reed to make the defendants (plaintiffs) produce medical record. - Dismissed.

9. SER Darrell V. McGraw, Jr. v. Hon. Jay M. Hoke, Judge - 33445 - Petitioner, State of WV, seeks issuance of a writ of mandamus directing respondent to enter a final order in two actions currently pending.

10. SER Terron Godfrey v. Hon. James J. Rowe, Judge - 33444 - Petitioner seeks a writ of prohibition to prevent the State from retrying petitioners on criminal charges. Petitioner contends this would be in violation of his Fifth Amendment Right barring double jeopardy. - To be presented on briefs only without oral argument.

11. SER Gregory Wayne Fritzman v. Hon. Mark Karl, Judge - 33342 - Defendant convicted by guilty plea of multiple sexual offenses seeks issuance of a writ of mandamus against circuit court to obtain appointment of new counsel in underlying habeas corpus action. - Dismissed.

Motion Docket
Wednesday, Sept. 12

1. Marvin Tyler v. Howard Painter, Warden - 070488 - Marvin Tyler appeals the denial of his omnibus petition for habeas corpus. He was previously convicted of first degree murder with a recommendation of mercy.

2. State of W. Va. v. Zachary Ryan Crouch - 063352 - Zachary Ryan Crouch appeals the circuit court's order requiring him to register as a sex offender.

3. Elizabeth A. Sedlock & Jason Banish v. Marshal Ann Felton, et al. - 070854 - This is a petition on a Rule 54 Appeal of an Order entered on October 24, 2006. The Harrison County Circuit Court granted a motion to dismiss the real estate agent, the real estate agency and the broker and made such immediately appealable under Rule 54(b) of the West Virginia Rules of Civil Procedure. The civil action remains presently pending against the Romanos, who have a motion to dismiss the pending action in the Harrison County Circuit Court.

4. Robert Macek & Lawrence Macek, Co-Exe. of the Estate of Phyllis Macek v. Carl R. Jones, D.O. & Weirton Medical Center - 070869 - Petitioners appeal from the Brooke County Circuit Court's Order denying Post-Trial Relief. Petitioners had argued that it was error for the Court not to strike two jurors. After a six day trial, a jury returned a unanimous verdict in favor of the respondents.

5. Vanessa Jean Pruitt, Admx. of the Estate of Charles E. Fruitt, et al. v. WV Department of Public Safety, C. E. Kane, et al. - 070990 - Plaintiffs appeal the circuit court's order granting summary judgment in favor of one defendant, the WV Department of Public Safety.

6. St. Luke's United Methodist Church, Mary Maxine Welch, Jay-Bee Production Co. v. CNG Development Co., et al. - 070929 - Plaintiff Welch brings this interlocutory appeal from the circuit court's order granting defendant's motion to dismiss plaintiff's partial rescission claim arising out of an oil and gas lease. The circuit court has entered a stay below pending plaintiff's petition for an interlocutory appeal.

7. Randall P. Stump, Sr. v. Pilgrims Pride Corp. & Jeffrey Dearing - 070994 - Defendants Pilgrim's Pride and Jeffrey Dearing appeal from an adverse jury verdict and the denial of their motions in a case where plaintiff Randall P. Stump, Sr. asserts employment discrimination.

8. State of W. Va. v. Jennifer M. Ballard - 071333 - Defendant appeals from the circuit court's sentencing order following her guilty plea to forgery of a credit card. Defendant seeks a reversal of her sentence and the opportunity for probation.

9. Stephen V. Vennis v. William S. Haines, Warden - 071467 - Stephen B. Vennis appeals the circuit court's order denying his omnibus petition for habeas corpus.

10. William L. & Harrolyn B. Groves v. Roy G. Hildreth & Son, Inc., Roy G. Hildredth, Jr., Nitro ENergy, Inc., BNG Productin, et al. - 071601 - Petitioners appeal the Circuit Court's Order granting Default Judgment in the amount of $740,000 in favor of the respondents for an alleged tortious conversion of mineral rights from the respondents' property. Petitioner, Nitro Energy, Inc., asserts that the lower court abused its discretion in failing to set aside the Default Judgment in light of the facts of the case.

11. State of W. Va. v. Joshua C. Wears - 071602 - Petitioner seeks a reversal of the Trial Court's denial of his pretrial motion to present testimony of the alleged victim's sexual relationship with another perpetrator and seeks a reversal of the Court's sentencing order crediting him with 216 days of time served.

12. State of W. Va. v. Dreu Ferguson, Jr. - 071358 - Defendant was convicted of voluntary manslaughter following a jury trial. Defendant seeks a reversal and a new trial in which he would be allowed to present evidence of his mental condition.

Argument Docket
Wednesday, Sept. 12

1. SER Chemtall Incorporated, et al. v. Hon. John T. Madden, Judge, et al. - 33380 - Petitioners (former coal preparation plant workers) seek medical monitoring for diseases they claim may develop in the future because of exposure to polyacrylamide flocculants. Petitioner challenge two circuit court orders which petitioners assert are contrary to the prior opinions of this Court. Chief Justice Davis disqualified. Judge Pratt sitting by temporary assignment.

2. SER Lambert Turner Jones, II, et al. v. Hon. Arthur M. Recht, Judge, et al. - 33383 - Petitioner seeks a writ of prohibition to prohibit trial set for 4/25/07. The court below granted defendant's Motion to Exclude the testimony of petitioner's expert witness and denied Petitioner's Motion to Continue the Trial (no written order has been entered by the court).

3. Preussag International Steel Corp., dba Infra-Metals Co. v. March-Westin Co., et al. - 33286 - The United States District Court for the Northern District of West Virginia certifies the following question to this Court:
Certified Question:
"Under W.Va. Code §38-2-39 (2003), is a steel fabricator deemed to be a "subcontractor" where:

A. The steel fabricator enters a fixed-price contract with the general contractor of a public works construction project, pursuant to which the fabricator

i. Agrees to fabricate and deliver structural steel components conforming to the construction project's unique design specifications;
ii. Produces shop drawings for the fabricated steel components based on the project's engineering calculations and design specifications' [sic]
iii. Submits its shop drawings for approval by the project's architect and general contractor before fabricating the structural steel components; and
iv. Delivers the fabricated steel components on a delivery schedule based on construction progress;

B. The steel fabricator performs all physical fabrication processes at its own facility, away from the project site; AND
C. The fabricated steel components are not fungible and not readily marketable without further modification?"

4. Bernard J. Folio, et al. v. City of Clarksburg - 33295 - Plaintiffs appeal from the circuit court's order awarding summary judgment in favor of the defendant municipality in this action for specific performance and enforcement of right-of-way interests.

Grandeotto, Inc. v. City of Clarksburg - 33302 - Grandeotto, Inc. appeals the circuit court's order which granted summary judgment in favor of the City of Clarksburg in Grandeotto's lawsuit asserting fraudulent misrepresentation or negligent misrepresentation.

5. Amanda A. Frymier v. Higher Education Policy Commission, et al. - 32163 - Due to cost-reducing measures, petitioner's yearly work hours at Glenville State College were reduced. Petitioner appeals from the circuit court's order which affirmed the grievance board's decision that petitioner could not "bump" a less-senior employee in the same classification whose hours were not reduced.

Amanda A. Frymier v. Higher Education Policy Commission, et al. - 33296 - Petitioner Amanda Frymier appeals from the circuit court's order which affirmed the grievance board's decision that petitioner was not subjected to discrimination and favoritism.

6. State of W. Va. v. Danny L. Cecil - 33298 - Petitioner seeks a reversal of his conviction upon three felony counts, including one count of Sexual Abuse in the First Degree and two counts of sexual abuse by a guardian or custodian.

7. State of W. Va. v. Richard Allen Haines - 33304 - Richard Allen Haines appeals his conviction for one court of felony Delivery of a Schedule II Controlled Substance, to wit: methamphetamine.

8. Sandra Lynn Foster (now Lilly) v. James Tyrone Foster - 33301- Plaintiff wife appeals from the circuit court's order reversing the family court and determining that respondent father's claim for overpayment of child-support was not time-barred.

9. Christopher Lee Davis v. Thomas McBride, Warden - 33199 - Petitioner appeals from the circuit court's order denying his petition for habeas relief. Petitioner asserts that both his state and federal constitutional rights have been violated.

10. SER David Eddie Cowan v. Jane Cline, Insurance Comm'r, State of WV, et al. - 33436 - Petitioner wants to compel the Ins. Commissioner and BrickStreet Services to render a decision regarding claimant's application for total life award. Petitioner asserts the Commissioner has failed to act on this request for 8 years. - Dismissed.

Rehearing Conference
Thursday, Sept. 13

1. Terry R. Mace v. Ford Motor Company, No. 33080. (W.Va. May 25, 2007) (Per Curiam).

2. Susan M. Jackson v. The Putnam County Board of Education, No. 33038. (Per Curiam) (Davis, C.J. and Maynard, J. concur) (Starcher, J. and Albright, J. dissent).

3. The West Virginia University Board of Governors v. The West Virginia Higher Education Policy Commission, No. 33208. (W.Va. May 24, 2007) (Albright, J.).

4. Linda J. Haines, M.D. v. Pamela K. Kimble, No. 32844. (W.Va. Jun. 28, 2007) (Per Curiam) (Davis, C.J. and Maynard, J. dissent) (Starcher, J. concurs)

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